Document

IRC Judgement for Kerrison - 10 Dec 2003

Industrial Relations Commission of New South Wales
in Court Session

CITATION :

Kerrison v New South Wales Technical and Further Education Commission [2003] NSWIRComm 429

PARTIES :

APPLICANT:
Valda June Kerrison

RESPONDENT:
New South Wales Technical and Further Education Commission

FILE NUMBER:

IRC 3124 of 2000

CORAM:

Schmidt J

CATCHWORDS :

Declaratory Relief - Application under s154 of the Industrial Relations Act 1996 - TAFE teacher - competing draft orders - amendment to March judgment - judgment corrected - orders made

LEGISLATION CITED :

Industrial Relations Act 1996

CASES CITED :

Cachia v Hanes and another (1994) 179 CLR 403
Hungerfords & Ors v Walker & Ors (1988) 171 CLR 125
Kerrison v New South Wales Technical and Further Education Commission [2003] NSWIRComm 76

HEARING DATES:

13/11/2003; 26/11/2003

DATE OF JUDGMENT:

10/12/2003



LEGAL REPRESENTATIVES:


APPLICANT:
Mr GJT Hart
SOLICITORS:
Geoffrey Edwards & Co

RESPONDENT:
Ms E Brus of counsel
SOLICITORS:
IV Knight
Crown Solicitor

JUDGMENT:

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INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
IN COURT SESSION

CORAM: Schmidt J

DATE:
10 December 2003


MATTER NUMBER IRC 3124 OF 2000

VALDA JUNE KERRISON v NEW SOUTH WALES TECHNICAL AND FURTHER EDUCATION COMMISSION
Application for declaratory relief under s154 of the Industrial Relations Act 1996

JUDGMENT


1 Judgment was given in this matter on
21 March 2003 (Kerrison v New South Wales Technical and Further Education Commission [2003] NSWIRComm 76). The parties were directed to formulate orders within 14 days of the date of judgment. The matter was listed for hearing on 6 June 2003, but adjourned by consent.

2 At the recent hearing Ms Kerrison had legal representation. The evidence showed that there had been a number of developments since the judgment, which gave rise to other applications then made.

3 Competing draft orders were filed, although some common ground between the parties emerged at the hearing. After the hearing, further discussions ensued, which led to a greater measure of agreement.

4 The evidence showed that the view taken by TAFE to the earlier judgment was that until final orders were made, Ms Kerrison was not an employee of TAFE. She had received certain weekly payments after May 2003, on an ex gratia basis, but had not been restored to the payroll and was not recognised to be an employee of TAFE. Ms Kerrison, for her part, had sought practical reinstatement to her duties at TAFE, shortly after the judgment was given. This had been refused.

5 Ms Kerrison pursued this request, apart from a short period, after she was informed by TAFE that in order for her to be returned to work, she would be required to undertake a medical examination in relation to her fitness to teach. Shortly afterwards, Ms Kerrison herself obtained a medical certificate from a doctor, attesting to her fitness. There was also evidence in these proceedings that there had been an earlier medical certificate supplied to TAFE in 1999, to similar effect. There was evidence that Dr Holmes had held a similar view, much earlier. TAFE was not prepared to act on that basis, it being explained that given her health during the course of the proceedings, that TAFE wished to have Ms Kerrison's "health and well being ensured and we have to be satisfied that she is fit and able, in all areas, to resume her duties." Ms Kerrison refused to undertake an examination by a doctor selected by TAFE and sought consequential relief in relation to that requirement, as well as a range of other matters.

6 The orders sought by Ms Kerrison were:

1 The Industrial Relations Commission in Court Session declares that the Applicant Valda Kerrison at all times from 1988 to date has been employed by the Respondent, New South Wales Technical and Further Education Commission AND that there has been no valid, effective or lawful termination of such employment.

FURTHER TO the Declaration herein made the Commission makes the following consequential Orders:-

The Commission in Court Session Orders:-


2 That the Respondent make payments to the Applicant, and on her behalf, and as specified in the orders following, to financially compensate her for the loss of salary, including pay and superannuation benefits, arising from the Respondents failure to treat the Applicant as an employee from 22 June 1995 to date and shall restore to the Applicant all accrued entitlements including long service leave entitlements equivalent to 141.2 working days as at November 2003 and accrued sick leave entitlements of 285 working days as at November 2003.

3 That the Respondent make payment pay (sic) to the Applicant the sum of $407,000.00 on account of unpaid salary for the period 22 June 1995 to 27 November 2003, together with interest thereon after deduction for income tax and superannuation payments;

4 That the Respondent make payment to the Australian Taxation Office, in the sum of $109,899.00 being group tax payable by or on behalf of the Applicant in respect of the salary now recovered by the Applicant as a consequence of the Commission’s Declaration and Orders herein;

5 That, in the event that the Australian Taxation Office requires payment by the Applicant of any fine, charge, levy, fee or other penalty (including late fees or interest charges) as a result of the timing of the taxation payments made pursuant to order 4 hereof, such fine, charge, levy, fee or penalty shall be paid in full by the Respondent on behalf of the Applicant within 14 days of the Respondent being notified in writing of such payment being required;

6 That the Respondent pay to the Administrator of State Super, on behalf of the Applicant, $41,644.00 being 9% voluntary contribution superannuation payable by way of salary sacrifice by the Applicant and a further sum that shall be calculated by the Administrator of State Super in the following circumstances. The Commission orders that the Respondent shall within 7 days of the date of this Order provide the Administrator of State Super with notice in writing that the Respondent requests the reinstatement of the Applicant’s SASS account and thereafter pay to the Administrator of State Super such further sum as shall put the Applicant in the position that she would have been in had superannuation contributions, being both employer and employee contributions, continued to have been made without interruption during the period 22 June 1995 to 27 November 2003;

7 That the Respondent pay the Applicant's costs in the proceedings in the sum of $70,000.00;

8 That the payments referred to in Orders 3, 4 and 7 hereof shall be made by the Respondent within 14 days of the making of these Orders and that the payment referred to in Order 6 hereof shall be made by the Respondent within 14 days of the relevant calculation being provided to the Respondent by the Administrator of State Super;

9 That the payments referred to in Orders 3 and 7 hereof shall be made by direct payment to the Applicant's solicitors Geoffrey Edwards & Co;

10 That the payments referred to in Orders 4 and 6 hereof shall be made direct to the Australia (sic) Taxation Office and to State Super as the case may be with copies of correspondence, payment details and receipts provided forthwith to the Applicants solicitors;

11 That the parties have liberty to apply on 7 days notice in respect of any dispute or difficulty arising from compliance with Orders 3 to 10 hereof;

12 That within 28 days of the date of these Orders the Respondent shall take all steps to require the Respondent's staff and management to treat the Applicant as an employee according to law; and

13 That, further to Order 12 hereof, the Respondent shall ensure that the Applicant:

(a) Is restored to the payroll of the Respondent and receives payment by way of salary in accordance with the relevant award, the relevant registered industrial agreement and other applicable industrial instruments and all other entitlements, including seniority and recognition of continuity of employment;

(b) Is provided with payslips and other documentation relating to her employment in the same manner as other employees of the Respondent are provided;

(c) Is provided with staff development in service training both on a continuing basis in accordance with the relevant industrial instruments and by way of special additional training to equip the Applicant with “make up” training to ensure that her return to the Respondent's teaching service is not jeopardised by the failure of the Respondent to provide such continuous training to the Applicant during the period June 1995 to November 2003. It is further ordered that such special training shall commence within 28 days of the date of these Orders;

(d) Is, subject to her first being afforded the staff development in service training referred to in (c) allocated appropriate teaching duties at the Kempsey campus of the Respondent consistent with the Applicant's experience, skills and her past level of performance;

(e) Is not subjected to any obstruction in her return to her duties and in particular the Respondent shall not purport to impose any requirement or precondition on the Applicant to attend a medical examination arranged by the Respondent; providing always that if the Respondent requests a current medical certificate certifying that the Applicant is fit to perform her duties the Applicant shall provide such certificate from her own treating General Practitioner and the Respondent shall accept such certificate as sufficient evidence of the Applicant’s fitness.

(f) Is not subject to avoidable humiliation and distress as a consequence of the suspicion, hostility or, ridicule of other members of the Respondent staff, including staff at the Kempsey campus, resulting from the circulation over the period June 1995 to date of written and verbal statements concerning the Applicant which have been tested by the Commission and found to be false;

(g) Is properly protected from such avoidable humiliation and distress in relation to the holding or circulation of documents containing untrue statements concerning the Applicant’s health, mental health, mental condition or, fitness to perform her duties or containing false allegations concerning the Applicant and guns, the Applicant and violence or any other materials relied upon by the Respondent in its purported termination of the Applicant’s contract of employment in 1995 – by the immediate removal of such documents from all personnel files or records held by the Respondent and management of the Respondent, and either destroyed or, in the alternative, stamped prominently in red on each page “NULL AND VOID – NOT TO BE USED” and stored securely and separately from any personnel documents files or records in use by the Respondent in the course of its staff management functions;

(h) Is properly protected from such avoidable humiliation and distress in relation to the circulation of untrue verbal allegations, statements, rumour and gossip by having published, within 28 days of the date of these Orders, in the local newspapers for the Macleay, Port Macquarie, Nambucca and Kempsey districts and in the TAFE Gazette a public notice in the following terms:

“PUBLIC NOTICE
NSW TAFE announces the return to Kempsey Campus of Mrs Valda Kerrison who will resume her teaching duties in the near future.
NSW TAFE deeply regrets the distress caused to Mrs Kerrison by the failure of its management at senior levels to protect her from false and unfounded allegations which were damaging to her reputation and to her teaching career.
The allegations have been shown to be utterly false in proceedings brought by Mrs Kerrison in the Industrial Relations Commission of New South Wales and she returns to her teaching career with her reputation totally unblemished.”;


(i) Is afforded all of the protection against victimisation and discrimination that is required by law to be afforded to any employee including protection under the Occupational Health and Safety Act, the Anti Discrimination Act and the Industrial Relations Act of New South Wales;


14 That the parties have liberty to apply on seven (7) days notice in respect of any dispute or difficulty arising from compliance with orders 12 and 13 hereof.'



7 She also sought two other forms of relief. A statement which provided:

'In this matter before the Commission in Court Session a finding has been made that the Respondent employer utilised deliberate deceit in its dealings with the Applicant employee. The Commission does not countenance deceit as being an acceptable form of conduct within the industrial relations environment whether it is practised by an employer against an employee or by an employee against an employer. Deceit, as an industrial weapon cannot coexist with the objects of the Act which are designed to create a framework for industrial relations which is fair and just and to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.

In this matter before the Commission the nature of the deceit is of particular concern for three fundamental reasons:-

Firstly, in circumstances where the conduct of the employee was exemplary and her performance of her duties equally so, the deceit was used to purportedly terminate the employees contract of employment, without affording her the usual, including statutory, protection against unfair dismissal, including due process.

Secondly, the deceit not only damaged the employee by disadvantaging her as an employee and causing her to lose salary, superannuation and other benefits of employment, but it impacted upon her reputation as a resident of her neighbourhood, as a participant in the social life of her community, in her domestic arrangements and in other facets of her life.

Thirdly, because the deceit involved the employee being deliberately deceived as to the true nature of arrangements made between the employer and a psychiatrist selected by the employer, the employee's fundamental human rights were denied her. The employer sought to obtain a medical certificate stating that the employee was unfit for her duties but failed to obtain the employees consent to be medically examined for such a purpose.

The Commission in Court Session accepts the Applicant’s contention that an employer does not have the right to have an employee psychiatrically assessed for the employer’s own purposes and has no right to use deceit to enquire into an employees thoughts or opinions. The Commission notes that a forced psychiatric assessment or a psychiatric assessment achieved by deliberate deceit is prohibited under the United Nations Universal Declaration of Human Rights (at article 19).

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas throughout any media and regardless of frontiers.”

This Statement is made by the Commission in Court Session not only for the benefit of the parties in this matter but for the benefit of all employers and employees in New South Wales and in the public interest.'



8 She also sought:

'The applicant applies to the Commission in Court Session for a correction to be made to the Decision of the Commission dated 21 March 2003.

At paragraph 197 (on page 68) the Commission noted:

"Ms Kerrison denied ever having made them, although at one point conceded saying words to the effect that someone "should be shot"."

The Applicant's recollection of her oral evidence, confirmed by her reading of the transcript, is that she did not concede in evidence, at any stage, that she said words to the effect "someone should be shot".

In these circumstances the Applicant applies, under the slip rule, for the apparent factual error on the face of the judgment be corrected.'


9 The orders proposed by TAFE were:

1. The Applicant is and at all times since 1988 has been employed by the Respondent, and there has never been any valid, or effective, termination of such employment.

2. The Applicant is entitled to be paid all emoluments pertaining to her position as a full time teacher employed by the Respondent together with interest thereon and to retain all seniority, long service leave and other entitlements, together with interest thereon.

3. With respect to any moneys otherwise earned by the Applicant since
22 June 1995, allowance to be made in that sum.

4. The Respondent pay the Applicant's costs as agreed or assessed.

5. The respondent satisfy Order 2 and 3, in relation to the period up to and including
22 May 2003, by:

a) within 14 days of the date of these Orders, paying:

$164,201 to the Applicant
$188,694 to the Deputy Commissioner of Taxation
$36,163 to the Administrator of State Super

b) within 14 days of being advised by the administrator of State Super, paying such other amount to the Administrator of State Super as is required to put the Applicant in the position that she would have been in had contributions continued to have been made without interruption during the period 22 June 1995 to 22 May 2003.


6. that any calculation by the Respondent of the Applicant's entitlement to long service (or extended) leave and sick leave shall be made without regard to any purported accessing for such entitlement during the period
22 June 1995 to 22 May 2003.



10 As noted earlier, some common ground was reached. TAFE accepted orders 3, 4 and 6 subject to quantum as proposed by Ms Kerrison, and orders 2, 8, 9 and 10. Orders 5, 7, 11, 12, 13 and 14 were opposed.

11 During the course of the hearing the terms of order 5 were discussed and later, agreement was reached.

12 The matter was relisted after the hearing. Ms Brus then tendered a document which indicated that while agreement had not been reached in further discussions between the parties, TAFE's position in relation to medical assessment had become that "[… the Applicant] Is not required by the Respondent, as a precondition to return to duties, to attend a medical examination arranged by the Respondent." Written submissions were filed for Ms Kerrison on 28 November in which the orders sought by Ms Kerrison, were pressed. Detailed submissions were advanced as to the parties' negotiations, the evidence in the proceedings and the evidence given at the further hearing, as to TAFE's attitude in relation to a further medical assessment. It was submitted that TAFE's position was illogical and that in reality, it had no interest in Ms Kerrison's health or well being. It rather desired that a vague and uncertain order be made, so that further impediments and limitations could be imposed upon Ms Kerrison.

13 The differences between the parties on money orders turned upon three issues. Ms Kerrison's rate of pay, the way interest was to be calculated and how costs were to be approached.

14 Evidence was called from Mr
Ashley White, an accountant and from Mr Peter Cribb, Senior Legal Officer, Department of Education and Training. They agreed on various aspects of the mathematical calculations involved, as well as various issues of principle, which also reduced the issues requiring the Court's determination. Affidavit evidence was given by Ms Ruth Gallagher, Industrial Relations and Legal Co-ordinator at NorthCoast Institute of TAFE. She was not required for cross examination.

Consideration

15 I turn then to deal with the issues in dispute. I have concluded that the money orders must reflect the salary of Ms Kerrison's substantive position, rather than that of head teacher. The evidence was that Ms Kerrison had acted in the head teacher position for only limited periods and that for the two years after her employment was brought to an end, such opportunities were unlikely to have arisen, given the appointment of a permanent head teacher at Kempsey. Appointment to such positions at TAFE depended upon vacancies arising, applications being made and a competitive merit selection process being successfully undertaken. Ms Gallagher's evidence showed that only one such vacancy had arisen in Kempsey, in 1999. It follows that the orders sought by Ms Kerrison, calculated at the head teacher rate for the entire period in question, were not properly available. The calculation must be made at the substantive teacher rate.

16 Ms Kerrison sought an order for compound interest. It was Mr White's opinion that this was the only basis upon which she could be compensated for the loss of use of the money she ought to have been paid fortnightly by TAFE. The approach of the High Court in Hungerfords & Ors v Walker & Ors (1988) 171 CLR 125 was relied upon and it was submitted that the Court's discretion was not constrained in these proceedings by the requirements of s372 of the Industrial Relations Act 1996 ('the Act'), which precludes the awarding of interest on interest.

17 As Ms Brus submitted, jurisdiction to make the orders sought was found in the earlier judgment, having regard to the provisions of various parts of the Act, including s368 (see [217]). That section deals with the making of orders for underpayment of wages. If such an order is made, the Court is constrained by s372, as to the orders which may be made for interest.

18 Having in mind the scheme of the Act, I cannot conclude that an appropriate exercise of a discretion to order the payment of interest in an application for declaratory relief such as this, could ignore the approach inherent in s372 of the Act. It is accordingly appropriate that the order for interest be at the usual Supreme Court rates, as the respondent submitted.

19 As to costs, Ms Kerrison sought that they be assessed at $70,000. It was candidly explained by Mr Hart that a 'rule of thumb' approach had been adopted, having regard to what TAFE had clearly spent on defending the proceedings and because she was not able to afford legal representation, it represented what she would have received, if she had been able to retain a barrister and solicitor of her own to contest the proceedings.

20 While not unsympathetic to the concerns underpinning the application, I cannot conclude that justice could permit an order made on such a basis. Ms Kerrison cannot be awarded costs which she did not incur. It also seems to me that the approach of the High Court as to costs which may be awarded by a Court to an unrepresented litigant, may not properly be ignored (see Cachia v Hanes and another (1994) 179 CLR 403). The usual order as to costs would be that the respondent bear the applicant's costs, as agreed or assessed. This would encompass various disbursements and out of pocket expenses. There was a concern, however, by the applicant that costs incurred in pursing Freedom of Information requests, necessary for her to investigate what TAFE had done and which resulted in her gaining much material, much of which was led as evidence in these proceedings, could not be recovered as disbursements, because those requests were made long before these proceedings were initiated.

21 Section 181 of the Act gives the Court a discretion as to costs. I am satisfied that it would be an appropriate exercise of that discretion to order that any sums incurred by Ms Kerrison in pursuit of such Freedom of Information requests, even prior to the initiation of these proceedings, be born by the respondent. This order will be supplemental to the usual costs order.

22 I turn then to Orders 13 and 14, as sought by Ms Kerrison. Order 13 was opposed by TAFE, as being not only unnecessary given the terms of Order 12, but because in some respects it was impossible for TAFE to comply with and impossible for the Court to enforce. Order 14 was argued to have the result that there could never be a proper conclusion to these proceedings.

23 It seems to me that these submissions have some force. The reason for the orders being sought were obvious, given Ms Kerrison's concerns about her treatment by TAFE both before and after the giving of the March judgment. I have found that there was a legitimate basis for many of her concerns in that judgment. Nevertheless, it seems to me that it cannot be overlooked that Ms Kerrison approached this Court for declaratory relief. Orders reflecting the conclusions reached in the March judgment must now be formulated.

24 One important purpose of the making of such orders is to bring the proceedings to a proper end. It follows that orders must be cast in such a way that they clearly indicate to the parties what they must comply with. They must also be capable of being observed and enforced. I accept TAFE's submission that Order 13 would give rise to some real difficulties in this respect. Order 14 would, in my view, have the result that the Court would accept an ongoing obligation to supervise the parties' relationship with each other, while ever it subsisted. That is not a proper basis for orders to be made in proceedings such as this.

25 Order 13 goes to the detail of what Order 12 seeks to achieve in a general way. Despite Ms Kerrison's concerns that she might encounter other difficulties in her ongoing relationship with TAFE, which might necessitate other grievances, disputes or litigation being pursued, I am not satisfied that it is either appropriate or helpful to the parties, to descend into the detailed regulation which is here sought of aspects of the parties' relationship, which I found in the March judgment to have been ongoing. They each have rights and obligations as a result, under their contract, any award or agreement which attaches to it and under a myriad of legislation. It is neither a sensible, or appropriate basis upon which to now formulate the declaratory relief for which Ms Kerrison approached this Court, for an attempt to be made by the Court to state by way of order, some aspects of those rights, obligations and indeed, duties and to provide for those orders to be the subject of ongoing supervision by the Court in these proceedings.

26 To illustrate the point, s210 of the Act deals with victimisation of employees who claim a benefit to which they are entitled under various legislation, or an industrial instrument. The enforcement provisions appear in s213, where the Commission may make various orders, including orders of reinstatement, payment of financial benefits foregone, promotion or advancement and other consequential relief. The section also provides a limitation period for the commencement of proceedings seeking such relief. The orders here sought would potentially have the effect in future of circumventing this part of the Act and the way in which the Parliament has determined that such matters are to be supervised, namely by the Commission rather than by the Court.

27 It follows that the supervisory orders sought must be refused.

28 Despite this general conclusion, I have had some hesitation in declining to make any orders in relation to the medical examination which TAFE indicated at the hearing it was still considering requiring Ms Kerrison to undertake, before resuming her duties. Reliance was placed upon her ill health during the course of these proceedings and a need for TAFE to ensure that Ms Kerrison, like all other employees, was fit for her work. As earlier noted, that position was not persisted with, given the discussions between the parties after the hearing, even though agreement on that matter was not reached.

29 I have some sympathies with Ms Kerrison's suspicions as to the bona fides of what was proposed, given the experiences which brought her to this Court and what was revealed on the evidence.

30 I am satisfied that an appropriate resolution of this aspect of the issues remaining between the parties, is to order that the respondent not require that any further medical examination be undertaken by Ms Kerrison, as a precondition upon her return to duties. Her medical advice is that she is fit to do so. There appears to be no proper basis for that advice to be questioned as the final position announced for the respondent plainly recognised.

31 There was also an issue as to whether the amount of any earnings obtained by Ms Kerrison in other employment, should be deducted from the amount of the orders otherwise to be made. I have concluded that in justice they should not. Not only was Ms Kerrison placed in a position where she had to find other work outside TAFE, given her age and the circumstances of her purported dismissal, she had considerable difficulties in doing so. She found little work in Kempsey and moved to Sydney, for long periods of time, both in order to find employment and to pursue her complaints about the purported termination of her employment by TAFE. As a result, she had not only considerable difficulties to contend with, she was involved in expense which exceeded her earnings. I am satisfied that TAFE ought not to have the benefit of those circumstance, so that Ms Kerrison would be even worse off, as the end result of what has occurred.

32 The end result of those conclusions is that the figures which should be included in the orders are those which appear as 'Scenario 4' in Mr White's calculation in using the teacher rate of salary; no allowance for other income earned by Ms Kerrison and simple interest. That latter figure does not appear in Order 3 but must be calculated by the parties to the date of judgment.

33 I next deal with the statement sought. It was described to be a form of further judgment, desirable in the public interest, given the unusual circumstances which have come forward in these proceedings. I decline to make such a statement. Judgment has been given. It is in the public domain and deals comprehensively with the circumstances revealed on the evidence. While it is not in the form of a one-page statement, it leaves no doubt as to how the circumstances revealed on the evidence should be viewed.

34 I am also not able to overlook the fact that the application which was brought was for declaratory relief, in relation to Ms Kerrison's position. I am satisfied that such proceedings are not a proper basis for a general statement to be made by this Court, as to questions such as the psychiatric assessment of employees. Such matters may well be of general public interest and they may also touch upon fundamental human rights, as the statement suggests. Nevertheless, other considerations also impact upon such matters, including the obligations imposed upon employers, employees and others, under awards, agreements, Occupational Health and Safety and other legislation. Such matters were not addressed in these proceedings, understandably, because they were concerned with Ms Kerrison's circumstances, not that of employees generally in the workforce.

35 Even if another approach were available to be taken, given the stage which these proceedings have reached, I am satisfied that it would not be appropriate to now embark upon such a course.

36 I finally deal with the question of the amendment sought to the judgment under the slip rule. Ms Kerrison seeks the deletion of part of a sentence referring to a concession which it was said she had made. Her position was that it was contrary to her recollection and had no support in the evidence. The respondent pointed to the evidence supporting the finding. Having considered the transcript recording that evidence, I am satisfied that it could be read inconsistently with such a concession having been made and have taken steps to have the judgment amended accordingly. A copy of the amended paragraph is annexed to this judgment.

Orders

37 For all of the reasons given I order as follows:

1. The Industrial Relations Commission in Court Session declares that the Applicant Valda Kerrison at all times from 1988 to date has been employed by the Respondent, New South Wales Technical and Further Education Commission AND that there has been no valid, effective or lawful termination of such employment.

FURTHER TO the Declaration herein made the Commission makes the following consequential Orders:

The Commission in Court Session Orders:-


2. That the Respondent make payments to the Applicant, and on her behalf, and as specified in the orders following, to financially compensate her for the loss of salary, including pay and superannuation benefits, arising from the Respondents failure to treat the Applicant as an employee from 22 June 1995 to date and shall restore to the Applicant all accrued entitlements including long service leave entitlements equivalent to 141.2 working days as at November 2003 and accrued sick leave entitlements of 285 working days as at November 2003.

3. That the Respondent make payment to the Applicant the sum of $239,091 on account of unpaid salary for the period 22 June 1995 to 27 November 2003, together with interest thereon to the date of judgment, after deduction for income tax and superannuation payments;

4. That the Respondent make payment to the Australian Taxation Office, in the sum of $101,830 being group tax payable by or on behalf of the Applicant in respect of the salary now recovered by the Applicant as a consequence of the Commission’s Declaration and Orders herein;

5. That, in the event that the Australian Taxation Office requires payment by the applicant of any fine, charge, levy, fee or other penalty (including late fees or interest charges) as a result of the timing of the taxation payments made pursuant to Order 4, hereof, such fine, charge, levy, fee or penalty shall be paid in full by the Respondent on behalf of the Applicant within 14 days of the Respondent being notified in writing of such payment being required PROVIDED THAT the Respondent shall not be liable to pay any fine, charge, levy, fee or penalty to the extent that such fine, charge, levy, fee or penalty is due to any default on the part of the Applicant AND PROVIDED THAT the rights of the Applicant in respect of such fine, charge, levy, fee or penalty shall be subrogated to the Respondent and the Applicant shall cooperate fully with the Respondent in any legal action in respect of the fine, charge, levy, fee or penalty.

6. That the Respondent pay to the Administrator of State Super, on behalf of the Applicant, $38,924 being 9% voluntary contribution superannuation payable by way of salary sacrifice by the Applicant and a further sum that shall be calculated by the Administrator of State Super in the following circumstances. The Commission orders that the Respondent shall within 7 days of the date of this Order provide the Administrator of State Super with notice in writing that the Respondent requests the reinstatement of the Applicant’s SASS account and thereafter pay to the Administrator of State Super such further sum as shall put the Applicant in the position that she would have been in had superannuation contributions, being both employer and employee contributions, continued to have been made without interruption during the period 22 June 1995 to 27 November 2003;

7. The Respondent pay the Applicant's costs as agreed or assessed.

8. That the payments referred to in Orders 3, 4 and 7 hereof shall be made by the Respondent within 14 days of the making of these Orders and that the payment referred to in Order 6 hereof shall be made by the Respondent within 14 days of the relevant calculation being provided to the Respondent by the Administrator of State Super;

9. That the payments referred to in Orders 3 and 7 hereof shall be made by direct payment to the Applicant's solicitors Geoffrey Edwards & Co;

10. That the payments referred to in Orders 4 and 6 hereof shall be made direct to the Australian Taxation Office and to State Super, as the case may be with copies of correspondence, payment details and receipts provided forthwith to the Applicants solicitors;

11. That the parties have liberty to apply on 7 days notice in respect of any dispute or difficulty arising from compliance with Orders 3 to 10 hereof;

12. The Respondent shall forthwith treat the Applicant as an employee according to law.

13. The Respondent shall not require that any further medical examination be undertaken by Ms Kerrison, as a pre-condition upon her return to duties.

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Annexure


complained; her numerous complaints that her grievance had not been properly investigated; her then perceived instability and threats then reported by Ms Robison of threats of 'physical harm with a firearm directed towards that teacher and others', had caused steps to be taken to implement a rehabilitation programme involving the Commonwealth Rehabilitation Service. Mr Quinn's evidence was that in April 1995, there were further events which caused him to send his various memos. Mr Quinn could not recollect what had precisely then occurred, which led him to send these memos.

- While Ms Kerrison denied having ever threatened suicide, both Ms Robison and Dr Holmes were concerned about that possibility. There was, however, no evidence at all that Ms Kerrison had made threats of using a gun or firearms to solve her problems. Neither Ms Robison nor Ms McGregor gave evidence that such threats had ever been made against them or to them, in respect of others. Ms Kerrison denied ever having made them. That such a commonplace, colloquial expression could have formed the basis of Mr Quinn's reports is scandalous. At best, the evidence was that Ms Kerrison had made such comments in 1994, while being treated for a depressive illness.

- Dr Jagger's evidence confirmed how Ms Kerrison's diagnosis was influenced by what Ms Walshaw told her and Dr Mandel. The information provided by Ms Walshaw about the support Ms Kerrison had received at TAFE, in relation to the grievances she had raised, was quite inconsistent with the evidence in these proceedings as to the treatment Ms Kerrison had received. This information Dr Jagger regarded as clearly evidencing Ms Kerrison's personality disorder. It is undoubted, in my view, that if Dr Mandel and Dr Jagger were in possession of the facts revealed in these proceedings that their diagnosis, would have been affected. Dr Holmes' opinion, later expressed to the Appeal Panel in 1995, quite contrary to that of Dr Mandel and Dr Jagger, more accurately, in my view, reflected Ms Kerrison's medical position and prognosis.


198 The evidence as to the way in which Ms Kerrison’s grievance had been dealt with by TAFE showed that Ms Kerrison's working relationship with Ms McGregor, Ms Robison and Mr Quinn, had been damaged as a result. Her complaints when referred to Dr Ramsey, understandably, were handled by TAFE on a confidential basis. Regrettably, this confidentiality was

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